Speaking Freely

Saturday, April 28, 2007

FBI consults with ACLU on National Security Letters

"Last week, the FBI did something unusual: It invited civil liberties groups to FBI headquarters to work on a draft of new guidelines for the use of National Security Letters (NSLs). The letters are special subpoenas the FBI can issue, without a court order, that permit agents to search telephone, e-mail and financial records. Nobody expected to leave the room satisfied and happy, but just the fact that the two sides sat down together marked a big change.

"This week, FBI Director Robert Mueller is going a step further. In an interview with NPR, Mueller said that last week's meetings went so well, he wants to get personally involved. He plans to invite privacy groups such as the American Civil Liberties Union and the Center for National Security Studies in the coming weeks to sit down with him and try to reach some common ground on use guidelines and other aspects of the subpoenas that have been troubling."

The meeting comes a month after revelations that the FBI was abusing its National Security Letters power under the Patriot Act, which allows the agency to obtain individuals' private information without any court oversight.

Attending the meeting on behalf of the ACLU was Mike German, a sixteen-year veteran of the FBI, who joined the ACLU last fall as Policy Counsel on National Security, Immigration and Privacy. According to the NPR article, German believes the FBI is motivated by fears that it will loose it's NSL powers completely.

"It's not as if there weren't rules of the road before," he said. "The law was very clear about how it could be used and when it could be used. And they just simply didn't follow the law. So there's nothing to show that they will follow new guidelines any more than they follow the old guidelines."

Still, it's not every day the ACLU gets invited to give advice to the FBI.

Thursday, April 26, 2007

Ray Krone: Five years of freedom

It's hard to believe that it's been five years since Ray Krone of York County became the 100th person exonerated after spending time on death row in this country. In that time, Ray has become a prominent speaker against the death penalty and for criminal justice reform. He's also become a great friend to those of us working on these issues

Our local NPR affiliate, WITF-FM, featured Ray on yesterday's broadcast:

Midstate man released from AZ death row fights PA capital punishment 04/25/2007Tim Lambert/Radio Pennsylvania(Philadelphia) -- A midstate man who spent time on death row in Arizona before being exonerated is lending his support to the effort to change the Commonwealth's death penalty policy. Ray Krone of Dover Township, York County, is backing the Pennsylvania Death Penalty Moratorium Coalition's latest call for a moratorium on capital punishment in the state. Since he was freed from prison in April 2002 through DNA testing, Krone has spent his time talking about his personal experiences and speaking out against the death penalty.

Advocates for the moratorium say it's unacceptable to even run the risk of executing an innocent person. The coalition says six people in Pennsylvania have been exonerated in the years since the death penalty was reinstated in the U.S. Currently, there are some 220 people on death row in the state.

The Pennsylvania Moratorium Coalition is a newly-formed collaboration of 15 organizations from the Commonwealth who are urging the creation of a study commission on the death penalty, accompanied by a two-year suspension of executions. The ACLU of PA is proud to be one of those 15 members. We have a lot of work to do.

One question I've heard about this campaign is this: Why now? I answer this question with two questions of my own: Why not now? And if not now, when?

Wednesday, April 25, 2007

What's with the little gray guy with no pants?

The funny looking egghead you see to the right is Mr. Habeas Corpus. The ACLU has launched a new website, www.findhabeas.com, bringing some fun to an otherwise very serious situation- the end of habeas corpus, brought on by the Military Commissions Act. You'll be hearing more about our campaign to Restore The Constitution and about Mr. Habeas over the coming weeks.

In St. Louis this week, Mr. Habeas was spotted in the lunch line and at Busch Stadium, but no one could nab him. He's sly like that.

Mark your calendar now for a national day of action in Washington, D.C. on June 26.

Monday, April 23, 2007

What happened to choice?

Every day poses challenges for many women - and by association, partners, families, and friends - in the struggle to protect their reproductive freedoms. Poverty and inadequate reproductive health education in schools add to the barriers to a healthy community. We need easier access to emergency contraception (EC), and we're gradually getting it. We need our medical experts to know the difference between RU-486 and EC. But one thing we don't need is a Supreme Court decision allowing politicians to interfere with personal medical deicions.

Unfortunately, that's what we've got. Last week, the U.S. Supreme Court upheld a federal law banning certain abortions. Congress passed the federal abortion ban and President Bush signed it into law in 2003, despite numerous court decisions striking down similar state bans.

The Court ruled on two challenges to the federal abortion ban, called by its sponsors the "Partial Birth Abortion Ban Act." Leading doctors and medical organizations, including the American College of Obstetricians and Gynecologists, which represents 90 percent of OB-GYNs in this country, opposed the federal ban.

If you'd rather these difficult medical decisions be left to women and medical professionals, you can send a letter to your representatives here.

Picture of the Day

The old courthouse in St. Louis, where the Dred Scott case was argued. Several of us from the ACLU-PA staff are attending the ACLU's staff conference in St. Louis, and I can see the courthouse from my hotel window.

Wednesday, April 18, 2007

Speaking freely has its costs

Something's up when The Nation and National Review get together. According to Free Press, Time Warner is lobbying the Postal Regulatory Commission for a postal increase that would lead to smaller, independent publications paying a higher rate than larger magazines.

Thomas Jefferson supported this with calls for a postal service that allowed citizens to gain "full information of their affairs," where ideas could "penetrate the whole mass of the people." Along with James Madison, he paved the way for a service that gave smaller political journals a voice. Their solution included low-cost mailing incentives whereby publications could reach as many readers as possible.

Other founders soon came to understand that the press as a political institution needed to be supported through favorable postal rates. President George Washington spoke out for free postage for newspapers through the mail, and Treasury Secretary Alexander Hamilton -- no proponent of government deficit -- conceded that incentives were necessary to spawn a viable press.

Apparently, the PRC rejected the USPS rate increase plan.

Under the original plan, all publishers would have a mostly equal increase (approx. 12 percent) in the cost for mailing their publications. The Time Warner plan overturned this level playing field to favor large, ad-heavy magazines like People at the expense of smaller publications like In These Times and The American Spectator. It penalizes thousands of small- to medium-sized outlets with disproportionately higher rates while locking in privileges for bigger companies.

The PRC has aligned itself with a media giant in an apparent effort to stifle smaller media in America.

Monday, April 16, 2007

New Real ID video

This 90-second Freedom Files video short looks at the federal Real ID Act that may be on its way to your local motor vehicles office, where it would bring longer lines, worse service, bureaucratic nightmares, and higher fees – and turn your driver’s license into a true federalized national identity card that will be used to invade our privacy in ways Americans have never seen before.

Wednesday, April 11, 2007

Immigrants, saving America's cities

Well, looky here. Some of America's major cities could be losing population to the tune of hundreds of thousands of people. They're not, and why not? Immigration.

Without immigration, the Los Angeles, California, metro area would have lost more than 200,000, the San Francisco, California, area would have lost 188,000 and the Boston, Massachusetts, area would have lost 101,000.

As important as immigrants are to America, one would think that we could be gracious enough to be a little more welcoming.

Tuesday, April 10, 2007

Another innocent man on PA's death row?

So last night I should have been in bed around 9:30, but after doing some school work, I decided to linger at the TV a bit. Between 9:30 and 10, I actually flipped over to Hannity & Colmes a few times, which is a sure sign that it's time to go to bed.

I caught the top of Anderson Cooper 360 to hear some of the Imus scuttlebutt, but then they teased a story about Cameron Todd Willingham. Willingham was executed in February, 2004 for a house fire in 1991 that killed his three daughters. In December of that year, the Chicago Tribune published an investigation that concluded that the fire was an accident, not arson.

Last night CNN did a story about the case and about the changing science of fire investigation. I sat up straight when they reached this point in the story:

BARRY SCHECK, CO-DIRECTOR, THE INNOCENCE PROJECT: There are hundreds of people at least whose cases have to be re-examined.

KAYE (voice-over): Barry Scheck of the Innocence Project says Dan Dougherty on Death Row in Pennsylvania could be one of them.

LENTINI: Fires are accidental until proven otherwise. None of the evidence in the case indicates an arson fire.

KAYE (on camera): So he shouldn't be on Death Row?

LENTINI: No, he shouldn't be on Death Row. He shouldn't even be in prison. He shouldn't have been tried.

KAYE (voice-over): Dougherty was sentenced to death in 2000 for a fire more than a decade earlier that killed two of his young sons. Neighbors say he tried to put the fire out.

But years later an ex-wife who was in a custody dispute with Dougherty at the time, told police he confessed to her he'd set it. The jury bought it, and the arson evidence.

Like the Willingham case, Lentini says investigators in the Dougherty case mistook burn patterns on the floor and apparent points of origin as evidence of arson. He says they didn't understand science and the phenomenon of flashover. When the fire gets so hot, the entire room catches fire, even the floor.

This is at least the second time in less than three years that the media has focused on cases of men on PA's death row who may be innocent. In the summer of 2004, the Philadelphia City Paper published a two-part series on the case of Walter Ogrod of Philadelphia. (Here's part 1, and here's part 2.)

What is clear from both the Dougherty case and the Ogrod case is this: Pennsylvania needs a temporary moratorium on executions while a commission can study how the death penalty functions in the Commonwealth.

Friday, April 06, 2007

Carlisle Sentinel: "The death penalty has served its time"

On Tuesday, the Carlisle Sentinel became the latest PA newspaper to recognize that

The death penalty is useless.

The editorial follows up a series of articles published last Sunday about capital punishment in the Commonwealth and around the country. The Sentinel has moved in the same direction as public opinion. Last year's Gallup poll showed that more Americans support life without parole over the death penalty.

Death penalty supporters point to the victims and their families as they argue for the punishment. But what about the families? What about the lengthy trial that compounds the anguish of their loved one's awful death? What about the years of awaiting appeal court decisions? And perhaps most important, what about their feelings on the occasions the defendant was wrongfully convicted?

As has been pointed out here before, the issue of capital punishment is clearly moving in our direction with death sentences at a 30-year low, executions down, and public opinion coming our. The Sentinel's editorial further proves that point. When a small town paper recognizes that the death penalty is failed public policy, we know we are moving forward.

Newt's free speech problem

Old white guys who have been in power for a while seem to have trouble maneuvering through race issues. In November, it was Rep. Tom Tancredo (R-CO), who referred to Miami as a "third world country." In February, Senator Joe Biden (D-DE) referred to Senator Barack Obama (D-IL) as the first "clean" and "articulate" black presidential candidate.

Now former Speaker of the House Newt Gingrich has referred to languages other than English as "the language of living in a ghetto."

"We should replace bilingual education with immersion in English," he told the women's group last weekend, "so people learn the common language of the country and they learn the language of prosperity, not the language of living in a ghetto."

Thursday, April 05, 2007

Picture of the Day

"You can take care of your cow but you can't take care of your kid"

The Widener Civil Law Clinic, in conjunction with the ACLU of PA and the ACLU Women's Rights Project, filed suit today on behalf of a sixteen year old mother against the Central Dauphin School District in suburban Harrisburg. According to the suit, the school has charged the student with truancy on multiple occasions when she has missed school to tend to her son when he is sick. She and her mother have paid fines, and the student has served a variety of in-school punishments. The Magisterial District Judge threatened to revoke custody of her son if she does not pay the fines and continues to miss school. (Mind you, she's missed some days of school to care of her sick kid.)

We contend that the school has violated her rights under the 14th Amendment (Equal Protection), Title IX, and the Equal Rights Amendment of the PA Constitution.

As a silly sidenote, under Pennsylvania's Compulsory School Attendance Law, "farming" and "agriculture activities" are excused absences. Monica Cliatt, supervising attorney at the Widener Civil Law Clinic, said at today's press conference, "You can take care of your cow but you can't take care of your kid."

Litigation is like war- it's the last option. We tried our best to work with the school. Calls and letters went unanswered. According to Cliatt, the best answer we got from one administrator was, "We only talk in court." That's unfortunate.

To be honest, I usually find students' rights cases to be boring. Don't get me wrong. They're important. The Constitution covers people of all ages, not just those over 18. I just find situations where a kid fights over his/her right to wear a t-shirt to be very ho-hum.

But this touches a nerve. Here is a young woman who is in a tough spot. She got herself into a life-altering situation but is now doing everything she can to make the best of it. She is responsibly tending to her child in the present moment and responsibly tending to her education- she's an honor student- with plans to go to college, which will give her and her son a brighter future.

So many teen moms neglect their children or their education or both. And don't get me started about the teen fathers.

Despite our client's best efforts, the school goes after her for truancy and levies detentions, suspensions, etc. An MDJ even has the nerve to threaten to take the child away.

This is government run amok. And that's why, in the words of one local columnist, the ACLU is "an essential institution in a free society."

Tuesday, April 03, 2007

Maxed out on minimums?

PHILADELPHIA- Members of Pennsylvania's General Assembly confronted the question of the burden of mandatory minimum sentences on the Commonwealth's criminal justice system at an informational meeting today in Philadelphia. The meeting was convened by the PA House Subcommittee on Courts in reference to House Resolution 12.

"I come at this from the perspective of justice," said Rep. Greg Vitali (D-Delaware County), the primary sponsor of the resolution who stated that mandatory minimums take the "leeway" out of judges' hands.

HR 12 would initiate a study of mandatory minimums by the PA Commission on Sentencing. A similar study was undertaken in 2004, but the judiciary committee had supervision of that project while the HR 12 study will be supervised by the Commission on Sentencing. In addition, the previous study lasted just eight months while the new one will last two years.

Several of the meeting's witnesses echoed Vitali's concern about giving judges greater discretion.

Jules Epstein, Associate Professor at Widener School of Law, observed that there are more than 1,000 people serving a mandatory sentence of life without parole for second degree homicide in Pennsylvania, and some of them "didn't touch a hair on anyone's head."

William DiMascio, Executive Director of the Pennsylvania Prison Society, talked about an example, Michael Anderson, who recently had his life sentence commuted by Governor Rendell. According to DiMascio, Anderson found a knife and took it with him on a bus en route to a concert. Another passenger took the knife from Anderson and used it to stab and kill a third passenger.

Under mandatory minimum sentencing requirements, Anderson got LWOP. The perpetrator served seven years and was paroled. He then went on to commit a series of crimes in Philadelphia and became known as the Center City Stalker.

Peter Rosalsky of the Philadelphia Defenders Association talked about another situation in which giving the judge leeway in sentencing may have been prudent. At a wedding, a fight broke out between the bride's father and her step-father. One of the men, who was 61, fell and broke a bone. The uninjured participant, who was 59, was sentenced to 2-4 years under mandatory minimum sentencing because the injured man was considered elderly by state law.

Several witnesses also addressed the deterrence effect of mandatory minimum sentences.

"Once the commission does this study, what they will find is that higher and higher sentences do not deter," said Arthur Donato, Jr., sociology professor at Villanova University and the past president of the Pennsylvania Association of Criminal Defense Lawyers. He went on to say that crime is deterred "when people have a stake in society and they have hope."

Epstein pointed to research from the 1990s that shows no deterrent effect with mandatory minimums.

"Whether or not deterrence works depends on the population we're focused on" and mandatory minimums are not a deterrent for street level drug dealing, he said.

Donato also raised concerns about checks-and-balances with a high concentration of power in the hands of prosecutors.

"Mandatory minimum sentences never apply unless a prosecutor wants it to," he said. "The amount of power is overwhelmingly in the executive branch.

"I've seen judges weep in giving a mandatory minimum sentence. I've never seen a judge say, 'Gosh, I wish the sentence could be harsher here.'"

The committee will hold another informational meeting with district attorneys and judges in the first week of May.

Monday, April 02, 2007

No excuse for ignorance of the law

Is it just me, or does it make one just a tiny bit nervous that FBI Director Robert Mueller, the man who keeps assuring Congress he's on top of correcting his agency's recent abuses of the USA Patriot Act, doesn't even know what the act says?

According to an AP story, Mueller said the following at Senate hearing about national security letters:

"I would give up NSLs for administrative subpoenas.... We do not have an enforcement mechanism for national security letters."

Oops. Turns out that the FBI actually does have that power already, thanks to the reauthorization of the Patriot Act a year ago.

I really can't say it better than the first paragraph of the same AP story:

FBI Director Robert Mueller blames poor training and supervision for the bureau's Patriot Act abuses and promises new training programs. He might want to sign up for the first class himself.